Critical Analysis of the Justification and Economic Foundations of the Intellectual Property Rights System

Abstract

The author arguments that, from a general perspective, the economic analysis of information and its relation with the law presents fulminate inefficiency. The author develops a study of the economic incentives in general and the manner how private property is constituted in the principal but not the only one of the economic incentives for the production of information and innovation. In strict sense, the author makes ontology of property, showing that it does not allow the inclusion of immaterial and intangible goods since the modern fundament of such institution comes form the appropriation and the homesteading, categories incompatible with the nature of information. Into such argumentation, the author fundaments in the economic incentive theories for information and innovation, initiating with the study of the nature of information and the fallacies that always had surrounded such good. The author concludes showing that intellectual property rights are not the product of an evolutionary process of an institution as the property, but, on the contrary, the proceed from privileges conceded by the State, which its justification and fundament is invalid and equivocal due to the incompatibility of the property and the homesteading rule with the ontology of information.